253 P.3d 1030
Or.2011Background
- State sought reconsideration of this court's opinion in State v. Barger, 349 Or. 553, 247 P.3d 309 (2011).
- Two Lane County cases were consolidated: one involved Encouraging Child Sexual Abuse in the Second Degree; the other involved various sex crimes.
- The original opinion held that mere access to images on the Internet did not prove possession or control under ORS 163.686.
- The initial disposition reversed the conviction in Case No. XXXXXXXXX and remanded with instructions to enter a judgment of acquittal.
- State sought clarification on remand scope, prompting modification of the dispositive paragraph to specify the remand order.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Scope of remand instructions on reconsideration | State argued remand should apply to both cases | Barger argued scope was ambiguous | Remand clarified: acquittal only in Case No. XXXXXXXXX; Case No. XXXXXXXXX affirmed. |
| Whether the prior disposition required acquittal across both cases | State contends acquittal for both convictions | Barger contends limited to one case | Modified disposition limits acquittal to Case No. XXXXXXXXX, other case affirmed. |
| Effect of the modification on final judgment | Modification preserves other aspects of judgment | No broader effect beyond clarified remand | As modified, adheres to prior opinion with clarified remand. |
Key Cases Cited
- State v. Barger, 349 Or. 553 (2011) (reversed acquittal; remanded for acquittal in one case; other case affirmed)